Rule2022-12079
Pacific Halibut Fisheries; Catch Sharing Plan
Primary source
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Published
June 6, 2022
Effective
June 6, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS issues regulations to remove limits on the maximum amount of halibut individual fishing quota (IFQ) that may be harvested by a vessel, commonly known as vessel use caps, in IFQ regulatory Areas 4A (Eastern Aleutian Islands), 4B (Central and Western Aleutian Islands), 4C (Central Bering Sea), and 4D (Eastern Bering Sea). This action is needed to provide additional flexibility to IFQ participants in 2022 to ensure allocations of halibut IFQ can be harvested by the limited number of vessels operating in these areas. This action is within the authority of the Secretary of Commerce to establish additional regulations governing the taking of halibut that are in addition to, and not in conflict with, those adopted by the International Pacific Halibut Commission (IPHC). This action is intended to promote the goals and objectives of the IFQ Program, the Northern Pacific Halibut Act of 1982 (Halibut Act), and other applicable laws.
Full Text
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<title>Federal Register, Volume 87 Issue 108 (Monday, June 6, 2022)</title>
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[Federal Register Volume 87, Number 108 (Monday, June 6, 2022)]
[Rules and Regulations]
[Pages 34215-34219]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-12079]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 220413-0094]
RIN 0648-BL28
Pacific Halibut Fisheries; Catch Sharing Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Temporary final rule.
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SUMMARY: NMFS issues regulations to remove limits on the maximum amount
of halibut individual fishing quota (IFQ) that may be harvested by a
vessel, commonly known as vessel use caps, in IFQ regulatory Areas 4A
(Eastern Aleutian Islands), 4B (Central and Western Aleutian Islands),
4C (Central Bering Sea), and 4D (Eastern Bering Sea). This action is
needed to provide additional flexibility to IFQ participants in 2022 to
ensure allocations of halibut IFQ can be harvested by the limited
number of vessels operating in these areas. This action is within the
authority of the Secretary of Commerce to establish additional
regulations governing the taking of halibut that are in addition to,
and not in conflict with, those adopted by the International Pacific
Halibut Commission (IPHC). This action is intended to promote the goals
and objectives of the IFQ Program, the Northern Pacific Halibut Act of
1982 (Halibut Act), and other applicable laws.
DATES: Effective June 6, 2022, through December 31, 2022.
ADDRESSES: Electronic copies of the Categorical Exclusion and the
Regulatory Impact Review (herein referred to as the ``Analysis'')
prepared for this action are available from <a href="http://www.regulations.gov">www.regulations.gov</a> or from
the NMFS Alaska Region website at <a href="https://www.fisheries.noaa.gov/region/alaska">https://www.fisheries.noaa.gov/region/alaska</a>.
FOR FURTHER INFORMATION CONTACT: Abby Jahn, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
This final rule implements regulations for the 2022 IFQ fishing
year to temporarily remove vessel use caps in Areas 4A, 4B, 4C, and 4D
and exclude harvest of IFQ halibut in 2022 from the calculation of
vessel use caps in IFQ regulatory Areas 2C, 3A, or 3B. The existing
vessel use caps were recommended by the North Pacific Fishery
Management Council (Council) and implemented by NMFS as part of the IFQ
Program (58 FR 59375; November 9, 1993) as regulations that were in
addition to, and not in conflict with, those adopted by the IPHC,
consistent with the Halibut Act (16 U.S.C. 773c(c)). The following
sections describe the IFQ Program; halibut IFQ vessel use caps; the
rationale for and effects from temporarily removing vessel use caps in
Areas 4A, 4B, 4C, and 4D; and the regulations implemented under this
final rule.
IFQ Program
Commercial halibut and sablefish fisheries in Alaska are subject to
regulation under the IFQ Program and the CDQ Program (50 CFR part 679).
A key objective of the IFQ Program is to support the social and
economic character of the fisheries and the coastal fishing communities
where many of these fisheries are based. For more information about the
IFQ Program, please refer to Section 2.4 of the
[[Page 34216]]
Analysis. Because this rule is specific to the halibut IFQ fishery,
reference to the IFQ Program in this preamble is specific to halibut
unless otherwise noted.
Under the IFQ Program, access to the commercial halibut fisheries
is limited to those persons holding quota share (QS). Halibut QS is
designated for a specific geographic area of harvest, a specific vessel
operation type (catcher vessel (CV) or catcher/processor), and for a
specific range of vessel sizes that may be used to harvest the halibut
(vessel category). Out of the four vessel categories of halibut QS,
category A shares are designated for catcher/processors that process
their catch at sea (e.g., freezer longline vessels) and do not have a
vessel length designation, whereas category B, category C, and category
D shares are designated to be fished on CVs that meet specific length
designations (Sec. 679.40(a)(5)).
NMFS annually issues IFQ permits to each QS holder. IFQ permits
authorize permit holders to harvest a specified amount of a particular
IFQ species in an area from a specific operation type and vessel
category, consistent with the QS they hold. IFQ is expressed in pounds
(lb) and is based on the amount of QS held by the permit holder in
relation to the total QS pool for each area with an assigned catch.
The IFQ Program also established: (1) limits on the maximum amount
of QS that a person could use (i.e., be used to receive annual IFQ)
(Sec. 679.42(f)); (2) limits on the number of small amounts of
indivisible QS units, known as QS blocks, that a person can hold (Sec.
679.42(g)); (3) limits on the ability of IFQ assigned to one CV vessel
category (vessel categories B, C, or D IFQ) to be fished on a different
(larger) vessel category with some limited exceptions (Sec.
679.42(a)(2)); and (4) limits on the maximum amount of halibut IFQ that
may be harvested by a vessel during an IFQ fishing year (Sec.
679.42(h)). Only qualified individuals and initial recipients of QS are
eligible to hold CV QS, and they must be on board the vessel when the
IFQ is being fished, with a few limited exceptions (Sec.
679.41(h)(2)). All of these limitations were established to retain the
owner-operator nature of the CV halibut IFQ fisheries, limit
consolidation of QS, and ensure the annual IFQ is not harvested on a
small number of larger vessels.
Halibut IFQ Vessel Use Caps
The Council established vessel use caps under the IFQ Program to
limit the maximum amount of halibut that could be harvested on any one
vessel. The limits are intended to help ensure that a minimum number of
vessels are engaged in the halibut IFQ fishery and to address concerns
about the socio-economic impacts of consolidation under the IFQ
Program. For additional detail on vessel use caps, see the preamble to
the proposed rule for the IFQ Program (57 FR 57130; December 3, 1992).
This final rule refers to halibut catch limits, commercial halibut
allocations, and vessel use caps in net pounds or net metric tons. Net
pounds and net metric tons are defined as the weight of halibut from
which the gills, entrails, head, ice, and slime have been removed. This
terminology used in this final rule is consistent with the IPHC, which
establishes catch limits and calculates mortality in net pounds.
For IFQ regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E,
vessels cannot be used to harvest more halibut IFQ than one-half
percent of the combined total catch limits of halibut (Sec.
679.42(h)(1)). Applying this regulation to 2022 yields a vessel use cap
of 101,490 lb (46.0 mt). This vessel use cap applies to vessels
harvesting IFQ halibut in the regulatory areas subject to this final
rule: Areas 4A, 4B, 4C, and 4D.
A Community Quota Entity (CQE) is authorized to hold halibut QS in
Area 4B on behalf of the community of Adak, Alaska (79 FR 8870;
February 14, 2014). A CQE is a NMFS-approved non-profit organization
that represents small, remote, coastal communities that meet specific
criteria to purchase and hold CV halibut QS on behalf of an eligible
community. The CQE holds QS and leases the IFQ derived from the
underlying QS to community residents. Any vessel harvesting halibut IFQ
that is derived from the QS and held by the CQE representing the
community of Adak is subject to the vessel use cap regulations at Sec.
679.42(h)(1)(ii), which limit a vessel to harvest no more than 50,000
lb (22.7 mt), in addition to those set forth at Sec. 679.42(h)(1)
introductory text and 679.42(h)(i).
Rationale and Effects of Temporarily Removing Vessel Use Caps in Areas
4A, 4B, 4C, and 4D
On February 10, 2022, at its regularly-scheduled meeting, the
Council addressed requests from IFQ fishery stakeholders to remove
vessel use caps applicable to the halibut IFQ fisheries in Areas 4A,
4B, 4C, and 4D (Sections 1 and 2.3 of the Analysis). The Council
requested this rule because of the ongoing socio-economic impacts of
the COVID-19 pandemic as identified by the public, including coastal
communities and fishery participants in Area 4. NMFS proposes this rule
to provide additional flexibility to vessels operating in Area 4 during
the 2022 fishing season. This action is expected to facilitate the
harvest of halibut allocated under the IFQ program in Area 4 and
provide additional harvest flexibility to vessels operating in Area 4.
This action is needed because of the relatively large proportion of
vessels participating in Areas 4A, 4B, 4C, and 4D halibut IFQ fisheries
that are operating near the current vessel use cap, thereby limiting
the amount of additional IFQ that could be harvested on vessels
operating in those areas (Section 2.3 of the Analysis). Additionally,
this action is expected to provide flexibility to the CQE representing
the community of Adak, Alaska, because the minimum number of vessels
needed under current use caps exceeds the number of vessels owned by
residents of the community (Section 2.5.2 of the Analysis).
The reader is referred to the Analysis, particularly Sections 2.3,
2.6, and 2.7, for additional detail on the efficacy of 2020 and 2021
rulemakings that temporarily removed vessel use caps in Area 4, a
broader discussion of the range of factors considered for this final
rule, and the anticipated effects of removing the vessel use caps in
Areas 4A, 4B, 4C, and 4D for both CQE and non-CQE-associated vessels.
The Council recommended ``expedited action'' to remove vessel use
caps for the halibut IFQ fishery in Areas 4A, 4B, 4C, and 4D to be made
effective as soon as possible during the 2022 fishing year, which ends
on December 7, 2022. NMFS accordingly established an expedited 15-day
comment period for the proposed rule.
The Council did not recommend, and this final rule does not
include, measures to remove the vessel use caps for the sablefish IFQ
fishery, or for other halibut IFQ areas, due to the larger number of
vessels that are currently active in the sablefish IFQ fishery and
these other halibut areas. Area 4E was not included because it is
entirely allocated to harvest under the CDQ Program; therefore, vessel
use caps do not apply to Area 4E. Additionally, halibut harvests in
Areas 2C, 3A, and 3B are unlikely to be constrained under the current
vessel use caps (Section 2.5.2.1 of the Analysis).
NMFS also considered the potential impacts on halibut conservation
and management if vessel use caps vessels in Areas 4A, 4B, 4C, and 4D
are relieved for the 2022 IFQ fishing year. The regulatory amendments
in this rule temporarily add a regulation to remove vessel use caps in
Areas 4A, 4B, 4C, and 4D. This final rule provides additional
[[Page 34217]]
flexibility to facilitate harvest of the halibut resource and is
responsive to the Council request to implement expedited rulemaking for
the 2022 IFQ fishing year due to the ongoing economic, social, and
public health impacts of the COVID-19 pandemic. This final rule does
not modify the vessel use cap provisions in future years, consistent
with the Council's goals in implementing vessel use caps in this
fishery (Section 2.3 in the Analysis). This final rule does not modify
other elements of the IFQ Program. This final rule does not increase or
otherwise modify the 2022 halibut catch limits adopted by the IPHC and
implemented by NMFS (87 FR 12604, March 7, 2022). This final rule does
not modify any other conservation measures recommended by the IPHC and
adopted by NMFS, nor any other conservation measures implemented by
NMFS independent of the IPHC. This final rule does not modify other
limitations on the use of QS and IFQ described in the previous sections
of this preamble.
Final Regulations
After considering the best available information, the Convention,
the status of the halibut resource, and the potential social and
economic costs of maintaining the vessel use cap limits described in
the preamble, this final rule adds a new, temporary provision at 50 CFR
679.42(h)(1)(iii) to remove vessel use caps for vessels harvesting IFQ
halibut in Areas 4A, 4B, 4C, and 4D during the 2022 IFQ fishing year.
Because vessel use caps are applied under existing regulations at the
fishery level, including harvest in all areas, this final rule
clarifies that harvest of IFQ halibut in regulatory Areas 4A, 4B, 4C,
and 4D is excluded from the calculation of vessel use caps in IFQ
regulatory Areas 2C, 3A, or 3B during the 2022 IFQ fishing year.
Changes From Proposed to Final Rule
NMFS did not make changes to the regulatory text in this final rule
from the regulatory text in the proposed rule.
Comments and Responses
NMFS received three comment letters during the public comment
period for the proposed rule (87 FR 23155, April 19, 2022). Below, NMFS
summarizes and responds to three unique comments. Of the three comment
letters received, one letter was from a non-profit corporation, one
letter was from an individual, and one letter was from a fishery
participant.
Comment 1: One commenter generally supported the action because it
is beneficial to fishermen and it is aligned with the original purpose
of the IFQ program, which promotes management objectives of the Halibut
Act. Additionally, the commenter opined that this action would have a
positive impact on fishery participant's ability to fully harvest their
allocations.
Response: NMFS acknowledges the commenter's support for this
action.
Comment 2: One commenter supported the action because it provides
flexibility and benefits communities in Area 4, which continue to face
economic, operational, and public health challenges due to the fishery-
level impacts of the COVID-19 pandemic.
Response: NMFS acknowledges the commenter's support for this
action.
Comment 3: One commenter opposed the action because of concerns
with consolidation, who benefits from actions like this one, and
barriers to entry into the IFQ Program. The commenter adds that, in
their view, this action does not align with the original intent of the
IFQ program to protect fishery participants from consolidation. They
opine that NMFS should not allow a small number of QS holders to
continue to benefit from the IFQ program. The commenter believes that
if QS holders do not want to fish, then they should sell their quota
shares. In their view, by removing vessel use caps, this action
promotes consolidation, which increases the price of the QS and
barriers to entry into the IFQ Program.
Response: The Council recommended implementing this action for the
2022 fishing year because of the ongoing socio-economic impacts of the
COVID-19 pandemic identified by the public, including coastal
communities and fishery participants in Area 4. NMFS carefully assessed
the potential social and economic effects of this action. This final
rule is temporary and therefore does not modify the vessel use cap
provisions in future years. The Council and NMFS continue to strongly
support the vessel use caps provision of the IFQ Program. These vessel
use cap requirements are an essential component of the IFQ Program
because they ensure harvesting opportunity is not consolidated into too
few vessels (Section 2.3 of the Analysis).
When the Council developed the IFQ Program, one primary objective
was to protect entry-level and part-time participants that may have
otherwise been eliminated because of predicted consolidation trends.
However, since implementation, the value of QS has increased and the
number of vessels harvesting IFQ has decreased, resulting in some
consolidation. Notably, however, this action is limited to modifying
vessel use caps in 2022 only, as detailed in the preamble to this final
rule, and does not modify any other provisions of the IFQ Program that
are designed to prevent excessive consolidation and to facilitate
entry. Those unmodified provisions include the QS use caps (Sec.
679.42 (f)) and the fish down provision (Amendment 42 to the BSAI GOA
FMP).
Classification
Regulations governing the U.S. fisheries for Pacific halibut are
developed by the IPHC, the Council, and the Secretary of Commerce.
Section 5 of the Northern Pacific Halibut Act of 1982 (Halibut Act, 16
U.S.C. 773c) allows the Regional Council authority over a particular
geographical area to develop regulations governing the allocation and
catch of halibut in U.S. Convention waters as long as those regulations
do not conflict with IPHC regulations. This final action is consistent
with the Council's authority to allocate halibut catch among fishery
participants in Convention waters in and off Alaska.
There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day
delay in effective date. It is important that this final rule is
implemented in a timely manner before fishing vessels reach their use
caps. The IFQ halibut fishing season is already underway and began on
March 6, 2022. A consequence of delayed effectiveness of this final
rule would be that a vessel's fishing activity may be limited
unnecessarily if a vessel reaches their use cap prior to the effective
date of this rule. Additionally, an expedited implementation provides
much needed flexibility. Any delay in the effective date of this final
rule would be contrary to public interest. Therefore, there is good
cause to advance this thoroughly considered action without delay.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
A Regulatory Impact Review was prepared to assess costs and
benefits of available regulatory alternatives. A copy of this analysis
is available from NMFS (see ADDRESSES). Specific aspects of the
economic analysis are discussed below in the Final Regulatory
Flexibility Analysis (FRFA) section.
Small Entity Compliance Guide
Section 212 of the Small Business Regulatory Enforcement Fairness
Act of 1996 states that, for each rule or group of related rules for
which an agency is required to prepare a final regulatory flexibility
analysis, the agency shall publish one or more guides to assist
[[Page 34218]]
small entities in complying with the rule and shall designate such
publications as ``small entity compliance guides.'' Copies of the
proposed rule, this final rule, and the small entity compliance guide
are available on the Alaska Region's website at: <a href="https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/pacific-halibut-and-sablefish-individual-fishing-quota-ifq-program">https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/pacific-halibut-and-sablefish-individual-fishing-quota-ifq-program</a>.
Final Regulatory Flexibility Analysis
This FRFA incorporates the Initial Regulatory Flexibility Analysis
(IRFA) and the analyses completed to support this action. Section 604
of the Regulatory Flexibility Act (RFA) requires that when an agency
promulgates a final rule under section 553 of Title 5 of the U.S. Code,
after being required by that section or any other law to publish a
general notice of proposed rulemaking, the agency shall prepare a FRFA.
Section 604 describes the required contents of a FRFA: (1) A statement
of the need for and objectives of the rule; (2) a statement of the
significant issues raised by the public comments in response to the
IRFA, a statement of the assessment of the agency of such issues, and a
statement of any changes made to the proposed rule as a result of such
comments; (3) the response of the agency to any comments filed by the
Chief Counsel for Advocacy of the Small Business Administration (SBA)
in response to the proposed rule, and a detailed statement of any
change made to the proposed rule in the final rule as a result of the
comments; (4) a description of and an estimate of the number of small
entities to which the rule will apply or an explanation of why no such
estimate is available; (5) a description of the projected reporting,
recordkeeping, and other compliance requirements of the rule, including
an estimate of the classes of small entities that will be subject to
the requirement and the type of professional skills necessary for
preparation of the report or record; and (6) a description of the steps
the agency has taken to minimize the significant economic impact on
small entities consistent with the stated objectives of applicable
statutes including a statement of the factual, policy, and legal
reasons for selecting the alternative adopted in this final rule and
why each one of the other significant alternatives to the rule
considered by the agency which affect the impact on small entities was
rejected.
A description of this final rule and the need for and objectives of
this rule are contained in the preamble to this final rule and the
preamble to the proposed rule (87 FR 23155, April 19, 2022). That
description is not repeated here.
Public and Chief Counsel for Advocacy Comments on the IRFA
NMFS published the proposed rule on April 19, 2022 (87 FR 23155).
An IRFA was prepared and included in the Classification section of the
preamble to the proposed rule. The comment period for the proposed rule
closed on May 4, 2022. The Chief Counsel for Advocacy of the SBA did
not file any comments on the proposed rule. NMFS received no comments
specifically on the IRFA; therefore, no changes were made to this rule
as a result of comments on the IRFA. However, one comment was received
on the entities affected by this rule. For a summary of this comment
and the agency's response, refer to the section above titled ``Comments
and Responses''.
Number and Description of Small Entities Regulated by This Final Rule
This final rule directly regulates the owners and operators of
vessels that are used to harvest halibut IFQ in IFQ Areas 4A, 4B, 4C,
or 4D. As of 2020 (the most recent year of gross revenue data), there
were 99 unique vessels that harvested halibut IFQ in IFQ Areas 4A, 4B,
4C, or 4D. Based on average annual gross revenue data, including
affiliations, all but one of these vessels that landed halibut in 2020
are considered small entities based on the applicable $11 million
threshold. Additional details are included in Sections 2.9 in the
Analysis prepared for this rule (see ADDRESSES).
Recordkeeping, Reporting, and Other Compliance Requirements
This action does not contain additional recordkeeping, reporting,
or other compliance requirements.
Description of Significant Alternatives That Minimize Adverse Impacts
on Small Entities
The RFA requires identification of any significant alternatives to
the final rule that accomplish the stated objectives of the final
action, consistent with applicable statutes, and that would minimize
any significant economic impact of the final rule on small entities.
The Council requested one action alternative. No other alternatives
were considered. Additionally, NMFS did not identify other action
alternatives that would provide the same level of flexibility that was
requested by the Council within the requested expedited timeframe.
Further, this action is the same as the action implemented in 2021 and
similar to the action implemented in 2020. In consideration of the
Council's request, NMFS analyzed the impacts of the action alternative
compared to the status quo.
The status quo alternative would retain the existing vessel use cap
restrictions as defined under 50 CFR 679.42(h). It is possible that
existing vessel use caps regulations under the status quo may increase
the likelihood that some of the annual halibut allocation is left
unharvested in Area 4.
This final rule implements the action alternative to remove limits
on the maximum amount of halibut IFQ that may be harvested by a vessel
in IFQ regulatory Areas 4A, 4B, 4C, and 4D. This action provides
additional flexibility to IFQ participants in 2022 to ensure
allocations of halibut IFQ can be harvested by the limited number of
vessels operating in these Areas. However, this may result in a
reduction in crew jobs and opportunities for new entrants in Areas 4A,
4B, 4C, and 4D. Additionally, if there are fewer participants in the
fishery, it is possible that landings could consolidate to fewer
processors and communities depending on landing location and historic
harvester-processor relationships.
Collection-of-Information Requirements
This rule contains no information collection requirements under the
Paperwork Reduction Act of 1995.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: June 1, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 679 is amended
as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
1. The authority citation for part 679 continues to read as follows:
Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.;
Pub. L. 108-447; Pub. L. 111-281.
0
2. In Sec. 679.42, add paragraph (h)(1)(iii) to read as follows:
Sec. 679.42 Limitations on use of QS and IFQ.
* * * * *
(h) * * *
(1) * * *
(iii) Notwithstanding the vessel use caps specified in paragraphs
(h)(1) introductory text and (h)(1)(ii) of this section, vessel use
caps do not apply to vessels harvesting IFQ halibut in IFQ
[[Page 34219]]
regulatory Areas 4A, 4B, 4C, and 4D during the 2022 IFQ fishing year.
Harvest of IFQ halibut in regulatory Areas 4A, 4B, 4C, and 4D is
excluded from the calculation of vessel use caps for IFQ regulatory
Areas 2C, 3A, or 3B during the 2022 IFQ fishing year.
* * * * *
[FR Doc. 2022-12079 Filed 6-3-22; 8:45 am]
BILLING CODE 3510-22-P
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